Can not smoking be hazardous to another person's health? This AP article reports on the appeal of Ohio murderer Phillip Elmore, now pending before the Ohio Supreme Court. " 'The judge's refusal to make any accommodation of jurors' request to smoke predisposed those jurors to agree on a quick decision,' Elmore's lawyers wrote."

In recent years, the U.S. Supreme Court has shown an increasing tendency to read the Bill of Rights as requiring conformity to the procedures of the common law. We saw that in Crawford v. Washington and the Apprendi-Blakely-Booker line. So what did the common law say about discomforting jurors?

"[I]n order to avoid intemperance and causeless delay, [the jury] are to be kept without meat, drink, fire, or candle, unless by permission of the judge, until they are unanimously agreed. A method of accelerating unanimity not wholly unknown in other constitutions of Europe, and in matters of great concern.... But if our juries eat or drink at all, or have any eatables about them, without consent of the court, and before verdict. it is fineable.... And it has been held, that if the jurors do not agree in their verdict before the judges are about to leave the town, though they are not to be threatened or imprisoned, the judges are not bound to wait for them, but may carry them round the circuit from town to town in a cart." 3 W. Blackstone, Commentaries on the Laws of England 375-376 (1st ed. 1768).

This passage is in the volume on civil cases, but Blackstone does not indicate the procedure was any different for criminal cases.